The opinion of the court was delivered by: Phillips/Shirley
On December 5, 2007, the Honorable C. Clifford Shirley, United States Magistrate Judge, issued a thirty-three page Memorandum and Order, in which he ruled on various non-dispositive motions submitted by the defendants. These motions included, inter alia, motions for an Enright hearing by defendants Johnnie Martin and Aaron Brooks [Docs. 72 and 151], motions for a bill of particulars by said defendants [Docs. 69, 150, and 158], and motions by defendant Brooks to sever the trial [Doc. 143], for the production of exculpatory/impeachment materials [Docs. 147 and 148], to compel the production of evidence [Doc. 152], to produce witnesses' statements [Doc. 177], and, finally, for leave to file further motions [Doc. 178]. Defendants Martin and Brooks timely objected to the portions of Judge Shirley's order in which he ordered that these motions be denied.*fn1
As required by Federal Rule of Criminal Procedure 59(a), this court has considered these timely objections. For the reasons that follow, this court agrees with Judge Shirley's thorough analysis, and defendants have failed to demonstrate that those portions of the Memorandum and Order [Doc. 218] to which they object are clearly erroneous or contrary to law. Accordingly, defendants' objections [Docs. 227 and 231] will be OVERRULED. The court will address these objections in the same order as Judge Shirley reviewed the corresponding motions in his Memorandum and Order.
I. Defendant Brooks's Motion to Sever
Brooks objects to Judge Shirley's denial of the motion to compel. In support thereof, Brooks simply makes a conclusory statement that Rule 14 and Zafiro v. United States, 506 U.S. 534 (1993), mandate severance. Furthermore, Brooks argues that defendant Martin's terrorization of his co-defendants does not afford Brooks a fair trial.
Rule 14 and Zafiro, however, do not mandate severance in this or any instance. Rule 14 is discretionary in nature, stating, "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may ... sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. Pro. 14(a). The Supreme Court's decision in Zafiro simply affirms the discretionary nature of Rule 14. Indeed, in that case, the Supreme Court was presented with the very question of whether Rule 14 required "severance as a matter of law when co-defendants present 'mutually antagonistic defenses.' " Zafiro, 506 U.S. at 535. The Court answered in the negative, stating, "Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of relief to be granted, if any, to the district court's sound discretion." Id. at 538-39. Affording the district court this discretion serves to uphold the "strong preference in the federal court system for jointly indicted defendants to be tried together." United States v. Sherlin, 67 F.3d 1208, 1215 (6th Cir. 1995) (citing Zafiro, 506 U.S. at 537). As Judge Shirley correctly noted, joint trials "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro, 506 U.S. at 537 (quotation omitted).
Because of this strong preference for joint trials, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539. Thus, as Judge Shirley noted, the Sixth Circuit has repeatedly held that "[i]n order to prevail on a motion for severance, a defendant must show compelling, specific, and actual prejudice from a court's refusal to grant the motion to sever." United States v. Lupo, 463 F.3d 445, 473 (6th Cir. 2006) (quoting United States v. Saadley, 393 F.3d 669, 678 (6th Cir. 2005)); accord Sherlin, 67 F.3d at 1215; United States v. Sivils, 960 F.2d 587, 594 (6th Cir. 1992). The defendant bears this heavy burden because "jurors are presumed to follow the court's instruction to consider each defendant's case separately." Sherlin, 67 F.3d at 1215; see Zafiro, 506 U.S. at 539 ("[L]ess drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.").
The mere fact that the evidence against his co-defendant is more damaging than the evidence against him does not entitle a defendant to severance. E.g., United States v. Gardiner, 463 F.3d 445, 473 (6th Cir. 2006); United States v. Beverly, 369 F.3d 516, 534 (6th Cir. 2004).
Here, Brooks has proffered no specific trial right that would be violated if the motion to sever were denied. Instead, he has only cited vague denials of his "right to a fair trial." Nor has he offered any specific instances where the risk of specific or actual prejudice is sufficient to mandate severance. Accordingly, any prejudice that may result can be cured with proper instruction to the jury. Finally, Brooks's allegation that defendant Martin has terrorized his co-defendants do not demonstrate that Brooks will not be afforded a fair trial. Brooks's objections to the denial of his motion to sever [Doc. 143] are therefore overruled.
II. Defendants' Motions for an Enright Hearing
Federal Rule of Evidence 802(d)(2)(E) provides a hearsay exclusion for statements made by co-conspirators of a party and in furtherance of the conspiracy. In United States v. Enright, the Sixth Circuit held that before the district court may admit a co-conspirator's out-of-court statements as admissions against the defendant under Rule 802(d)(2)(E), the government must demonstrate the existence of a conspiracy and the defendant's connection therewith*fn2 by a preponderance of the evidence. United States v. Enright, 579 F.2d 980, 983-86 (6th Cir. 1978). In a subsequent opinion, the Sixth Circuit specified three ways in which the district court may determine this threshold question of admissibility: 1) conduct a pre-trial "mini-hearing" outside the presence of the jury to hear the government's proof of conspiracy, 2) require the government to produce non-hearsay evidence of conspiracy first prior to making the finding of admissibility, and 3) admit the hearsay statements subject to a later demonstration of their admissibility. United States v. Vinson, 606 F.2d 149, 152-53 (6th Cir. 1979).
Defendants Martin and Brooks moved for the utilization of the first option and object to Judge Shirley's denial of their motions. In his objection, Brooks contends that the first option is the "most efficacious and the most fair procedure in this case." [Doc. 231 at 4]. Brooks cites no case law in support of this argument. Martin likewise argues that the interests of justice require a pre-trial mini-hearing. Specifically, Martin argues that the nature of this multi-defendant case and the fact that many of his co-defendants have pleaded guilty will lessen the government's burden of proving each element beyond a reasonable doubt.
The decision of which method to employ, however, is "the trial court's prerogative." United States v. Robinson, 390 F.3d 853, 867 (6th Cir. 2004). As Judge Shirley recognized, this district routinely utilizes the third option, where the trial court admits the hearsay conditionally, subject to a later determination of its admissibility. The Sixth Circuit has repeatedly upheld the use of this method. E.g., United States v. Sexton, 119 F. App'x 735, 740 (6th Cir. 2005); United States v. Smith, 320 F.3d 647, 654 (6th Cir. 2003), vacated on sentencing grounds, 543 U.S. 1180 (2005). Defendants' general and vague objections demonstrate no specific prejudice which would result from the employment of this method. There is, therefore, no reason why this court should refrain from employing the third method, or any in its choosing. Indeed, it is this court's belief that a mini-hearing would be "burdensome, time-consuming, and uneconomic," Vinson, 606 F.2d at 152, particularly given the many delays already suffered in this case.
Martin objects that because the admissibility of statements by co-conspirators is determined under a preponderance-of-the-evidence standard, this unconstitutionally lessens the government's burden of proof to prove every element of the crime beyond a reasonable doubt. Defendant is mistaken, however, as to these standards. The government must demonstrate the elements of a conspiracy by a preponderance of the elements solely for the evidentiary purpose of determining the admissibility under Rule 801(d)(2)(E) of statements by co-conspirators. This does not disturb the government's ultimate burden of proof with regard to each element of the crime. Indeed, the court determines whether this threshold burden for ...